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2006

Are We Safer? Are We Safer?

David Cole Georgetown University Law Center

This paper can be downloaded free of charge from:

https://scholarship.law.georgetown.edu/facpub/10

David Cole, "Are We Safer?," The New York Review of Books, March 9, 2006, at 15 (reviewing

Daniel Benjamin and Steven Simon, The Next Attack: The Failure of the War on Terror and a

Strategy for Getting It Right (2006)).

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Are We Safer?

The New York Review of Books, March 9, 2006, at 15.

David Cole Professor of Law

Georgetown University Law Center cole@law.georgetown.edu

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Posted with permission of the author

VOLUME 53, NUMBER 4 · MARCH 9, 2006

Are We Safer?

By David Cole

The Next Attack: The Failure of the War on Terror and a Strategy for Getting It Rightby Daniel Benjamin and Steven SimonTimes Books, 330 pp., $26.00

1.

According to the Bush administration's Web site lifeandliberty.gov, we are "winning the war on terrorismwith unrelenting focus and unprecedented cooperation." The US government has captured or killed somethree thousand al-Qaeda "operatives," including two thirds of its leadership. Among those captured is thealleged mastermind of September 11, Khalid Sheikh Mohammed, from whom the government reportedlyobtained substantial intelligence, if only after the use of waterboarding and other forms of torture. TheBush administration says it has disrupted terrorist plots throughout the world—the Web site claims 150,although President Bush in a speech in October 2005 claimed only ten. The government has increasedsecurity at the borders and airports. The Justice Department has prosecuted more than four hundredpeople in "terrorism-related investigations" since September 11, and it has, according to the Web site,obtained convictions or guilty pleas in more than two hundred of these cases. It claims to have broken upterrorist cells in Buffalo, Detroit, Seattle, Portland, Oregon, and northern Virginia. And over 515 foreignnationals linked to the investigation of September 11 have been deported. Most important for Americans,there has not been another terrorist attack on US soil in the more than four years since September 11.

Of course, President Bush also famously proclaimed victory in Iraq, aboard the aircraft carrier USSAbraham Lincoln on May 1, 2003. (Shortly thereafter, he announced that "we found the weapons ofmass destruction.") Since then, more than two thousand Americans and probably ten times as manyIraqis have died in Iraq, and we still haven't found any weapons of mass destruction. So victoryproclamations from this administration deserve a strong dose of skepticism.

How does one measure victory in the "global war on terrorism"? In April 2004, the State Departmentreported that terrorist incidents throughout the world had dropped in the previous year, a fact DeputySecretary of State Richard L. Armitage promptly cited as "clear evidence that we are prevailing in thefight" against terrorism. Two months later, a chagrined Colin Powell acknowledged that the departmenthad miscounted, and that in fact terrorism worldwide had increased—where the initial report stated thatthe number of injuries resulting from international terrorist incidents had fallen from 2,013 in 2002 to1,593 in 2003, the corrected report stated that in fact terrorist-related injuries had risen to 3,646. In2005, the State Department eliminated numbers from its annual terrorism report, saying they were toodifficult to track accurately, but soon thereafter a leak suggested another reason for the omission—government analysts had found that terrorist incidents worldwide had jumped threefold from 2003levels, with 651 attacks in 2004 resulting in 1,907 deaths. So much for progress in the global war onterror.

resident Bush is fond of repeating, "We are fighting them over there so that we won't have to fightthem here at home." As a slogan, this may be good politics. But as a counterterrorism strategy, it

appears to be a disaster. Fighting them "over there" has since 2003 meant committing over one hundred

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thousand troops, hundreds of billions of dollars, and thousands of lives to a conflict in Iraq whose onlyclear connection to the "war on terror" has been its encouragement of terrorism. The US attack on Iraqhas created the world's principal breeding and training ground for anti-American terrorists. Many highlyinformed commentators have argued that the war in Iraq, based at best on faulty intelligence and at worston outright lies, was a major diversion from the real enemy—al-Qaeda and the terrorists loosely linkedwith it, or inspired by it—and that the war with Iraq has therefore made us less secure.[1]

Daniel Benjamin and Steven Simon, counterterrorism experts at the National Security Council underPresident Clinton, argue in their new book, The Next Attack, that the problem is more deep-rooted thanthe administration's erroneous venture in Iraq. In their view, the Iraq war is a symptom of the Bushadministration's obsession with fighting an offensive "war on terror," an obsession that has caused theadministration to disregard the less glamorous but more crucial task of shoring up America's defensesagainst future attacks. Committed to an outmoded strategy directed at states rather than the loose-knitnon-state terrorist movements that actually threaten us, the administration sought out a state to attack,and after an initial and justifiable campaign in Afghanistan, invaded Iraq. But when it comes to fightingthe decentralized threat of fundamentalist Islamic terrorism, Benjamin and Simon maintain, the bestdefense is not a good offense, but a good defense.

Especially after the US and its local allies forced al-Qaeda out of Afghanistan, the threat offundamentalist Islamic terrorism is not centralized, but globalized and dispersed. The subway bombingsin Madrid and London in 2003 and 2005 were the work not of disciplined al-Qaeda agents acting onorders from above but of small bands of young men with little or no connection to al-Qaeda, and little orno previous record as terrorists. Benjamin and Simon see these attacks as signs of a "new breed ofself-starting terrorist cells," and argue that the development of such cells has been vastly facilitated bythe Internet. In 1998, they report, there were only twelve Web sites for terrorist groups; in 2005, therewere 4,400. The Web sites spread both religious doctrine calling for violence and practical instructionsfor carrying it out. The consequences have been dire: according to the RAND Corporation, three quartersof all suicide bombings since 1968 took place in the four years after September 11.

Because the terrorist threat is decentralized and globalized, it cannot be fought by traditional militarymethods. There is no territory to take, no land to occupy, and, with few exceptions, no country to holdaccountable. The target is constantly moving and growing. Benjamin and Simon suggest that we think ofthe terrorist threat as two concentric circles—a relatively small inner one consisting of committedterrorists, violently opposed to what they see as infidel Western governments and institutions, and alarger outer circle consisting of those susceptible of being moved to the inner circle. The challenge, theyargue, is not only to find and incapacitate the inner circle, but also to reduce migration from the outer tothe inner circle. Or, as Donald Rumsfeld asked in an October 2003 internal Pentagon memo, "Are wecapturing, killing or deterring and dissuading more terrorists every day than the madrassas and the radicalclerics are recruiting, training and deploying against us?"[2]

uch of Benjamin and Simon's book concentrates on the war with Iraq, which they view as havingplayed into the terrorists' hands. Drawing on their own experience and contacts when they were

members of Clinton's National Security Agency, they retell the now-familiar story of how the Bushadministration was bent on regime change in Iraq almost from the day it took office. It started planningfor war against Iraq immediately after the terrorist attacks of September 11; pressured intelligenceagencies to make a case for the invasion of Iraq; created its own ad hoc Counter Terrorism EvaluationGroup, headed by Douglas Feith, undersecretary of defense for policy, to make the case when theintelligence agencies were reluctant to do so; and then failed to plan for the war's aftermath. Accordingto Benjamin and Simon, administration officials, certain that the US would be welcomed with open arms,literally prohibited planners from even considering the problem of postwar security.

There is little question that the Iraq war, instead of supporting the struggle against terror, has weakened

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it. In February 2005, CIA Director Porter Goss told Congress that "Islamic extremists are exploiting theIraqi conflict to recruit new anti-US jihadists," and those "who survive will leave Iraq experienced andfocused on acts of urban terrorism. They represent a potential pool of contacts to build transnationalterrorist cells, groups, and networks."[3] The military analyst Anthony Cordesman has identifiedthirty-two "adaptations" to US strategy that the insurgents have successfully made since the war began,including "mixed attacks" in which one bomb follows another with some delay, in order to maximizeinjury to police and rescue workers; more sophisticated surveillance of US forces and their allies;improved infiltration of the Iraqi military and police forces; and increasingly deadly improvised explosivedevices. The insurgents have obtained access to large caches of Saddam Hussein's arms that the USmilitary failed to secure. And they have been able to demonstrate to the world their commitment andtheir willingness to die by daily attacks on the US and Iraqi military and police forces—many of themsuicide attacks that are videotaped and promptly disseminated throughout the world via the Internet.

As Benjamin and Simon put it, the administration "failed the first test of military leadership. They did notknow who their real enemy was." The authors cite the constant bombing and heavy ground fire of the"shock and awe" campaign at the beginning of the Iraq war as an illustration of the problem. Thebombing was effective for a few weeks in subduing Saddam Hussein. But if the enemy is a terroristideology spread throughout the Muslim diaspora, a "shock and awe" strategy is very likely to backfire byreinforcing the enemy's description of the United States as an aggressive force without regard for thelives of innocent Muslims.

ational security policy, the authors argue, should reject the model of a military "war on terror," andinstead adopt an intelligence-based approach that (1) seeks to identify, capture, and disrupt

terrorists; (2) safeguards the most dangerous weapons to keep them out of terrorists' hands; (3) identifiesand protects the most vulnerable targets in the US; and (4) reduces the creation of new terrorists byaddressing the grievances that drive people to extreme violence in the first place.

The Bush administration's stubborn adherence to the traditional conception of war has caused it todisregard more important and effective defensive actions. The administration, Benjamin and Simon write,has failed to safeguard nuclear weapons materials in the former Soviet Union; failed to identify andprotect the most vulnerable targets within the United States, such as water supplies; failed to workeffectively with private businesses that are responsible for other vulnerable targets, such as chemicalplants; and failed to increase in any significant measure the monitoring of container cargo at shippingports, of which only one in twenty is inspected. According to the authors, the FBI is still so reluctant toadapt its methods to the realities of terrorism that it has used its intelligence "analysts" to take out thegarbage and answer phones, the result being a very large turnover of employees who should be piecingtogether scraps of intelligence in order to find terrorists and disrupt their plans.

Benjamin and Simon's critique of homeland security is largely corroborated by the bipartisan 9/11Commission's assessment in December 2005 of the Bush administration's progress in fulfilling theforty-one recommendations in the commission's Final Report, released in July 2004. Grading theadministration on each of its recommended reforms, the 9/11 Commission gave it five F's, twelve D's,eight C's, several incompletes, and only one A–. Among the measures that received either an F or a D aresome of the most basic requirements of security. The administration was given a D for its identificationof vulnerable potential targets, as well as for its efforts to secure weapons of mass destruction, itsscreening of checked luggage and cargo for explosives, its arrangements for sharing information amongintelligence agencies, and its support of secular educational reform in Muslim countries. It received an Ffor, among other things, its failure to develop common standards with other nations for detaining andprosecuting terrorist suspects as well as for its failure to establish an effective program to screen airlinepassengers for potential terrorists.[4]

2.

Are We Safer? - The New York Review of Books

Benjamin and Simon's diagnosis of the Bush administration as fixated on outdated conceptions of war isironic, given the administration's insistence that "everything changed" after September 11, and that it hasadopted an entirely new model for fighting global terror. For example, the Pentagon's National SecurityStrategy, issued in September 2002, advanced a new and controversial justification for going to war. Itargued that in light of the threats now posed by weapons of mass destruction, war is justified not onlywhen the nation is attacked or faces imminent attack—the only justifications for war recognized byinternational law—but also when the US faces a more speculative but potentially catastrophic futurethreat. This was the theory for the Iraq war. Since the administration could not argue that an attack byIraq on the United States was imminent, it contended that the potential for attack with weapons of massdestruction at some undetermined time in the future was sufficient to justify a "preventive" war.

he administration has invoked a similar "preventive" rationale to defend the use of cruel, inhuman,and degrading treatment to interrogate al-Qaeda and other prisoners, maintaining that the

information it obtains may help prevent future attacks. It has argued that the conflict with al-Qaeda is anew kind of war, and therefore traditionally recognized rules of war, such as affording detainees ahearing to decide whether they are in fact enemy combatants, and treating detainees humanely, do notapply.

Within the US, Attorney General John Ashcroft repeatedly promoted what he labeled a new "paradigmof prevention" in law enforcement. When the enemy is willing to commit suicide to inflict masscasualties on civilians, he argued, the US must act preemptively to prevent the next attack fromoccurring. On this theory, the administration subjected 80,000 Arab and Muslim immigrants tofingerprinting and registration, sought out 8,000 Arab and Muslim men for FBI interviews, andimprisoned over 5,000 foreign nationals in antiterrorism preventive detention initiatives. As part of thisprogram, the government adopted an aggressive strategy of arrest and prosecution, holding people onminor charges—in fact pretexts—such as immigration violations, credit card fraud, or false statements,or, when it had no charges at all, as "material witnesses."

Using a similar preventive rationale, the administration demanded, and got, expansive new powers in theUSA Patriot Act, and since then the FBI reportedly has used that act to issue 30,000 "national securityletters" a year to businesses across the country. These letters, issued without judicial review, requireInternet and telecommunications companies and financial institutions to disclose information about theircustomers. The letters prohibit the recipients from telling anyone about the FBI's request. Most recently,the administration has advanced the preventive rationale to justify the National Security Agency'swarrantless wiretapping of persons in the United States, without congressional or judicial approval,pursuant to an executive order adopted in secret and in contravention of a criminal prohibition on suchsurveillance. As The New York Times recently reported, one result of the NSA's spying was to inundatethe FBI with thousands of "leads" that turned out to go nowhere.[5]

From this vantage point, then, the administration has rejected at least one old model for protectingnational security. That model—it could be called "the rule of law"—reserves coercion, detention,punishment, and the use of military force for those who have been shown, on the basis of sound evidenceand fair procedures, to have committed some wrongful act. The police can invade privacy by tappingphones or searching houses, but only after getting a warrant based on probable cause that evidence ofcrime is likely to be found. Individuals can be arrested, but only after the government shows probablecause that they have committed a crime. They can be preventively detained, but only after evidence issubmitted of past wrongdoing as well as of danger to the community or a risk of flight. They can bepunished only upon proof of guilt beyond a reasonable doubt. And nations can use military force only inresponse to attack or imminent attack. The administration's "preventive paradigm," by contrast, justifiescoercive action—whether it takes the form of detention or torture or bombing—on the basis ofspeculation about future contingencies, without either the evidence or the fair legal processes thattraditionally have been considered necessary before the state resorts to coercion.

Are We Safer? - The New York Review of Books

his "preventive" approach was used to launch the attack on Iraq, and has been used to justifyGuantánamo, disappearances, CIA black sites, torture, NSA domestic spying, and Vice President

Cheney's open demand that the Congress approve the infliction of cruel, inhuman, and degradingtreatment on foreign nationals captured in the "war on terror." Those measures have done incalculabledamage to the perception of the US around the world, as illustrated by Condoleezza Rice's chillyreception during her recent visit to Europe as well as by polls showing anti-Americanism at all-timehighs.

What unites the Bush administration's obsession with, on the one hand, the old model of war againststates and, on the other, its use of the new "preventive paradigm" at home and abroad is an almost totalcontempt for the importance of maintaining legitimacy in the struggle against terrorism. Theadministration's policies presume that the US can defeat global terrorism by declaring war on it, usingsmart bombs, dispatching troops, and treating prisoners harshly. But as Iraq illustrates, such tactics canhave disastrous consequences, particularly when divorced from the constraints of the rule of law. Theyundermine the legitimacy of the United States as a responsible world power while reinforcing the enemy'sappeal.

No one concerned with American security disputes that it is necessary to prevent terror attacks or thatcoercion and military action can be justified. Both NATO and the UN Security Council recognized theacts of September 11 as an armed attack that justified self-defense. The Afghanistan offensive succeededin capturing or killing many al-Qaeda leaders, closing their training camps, and seizing records andcomputers from their headquarters that helped to locate still other al-Qaeda operatives. By contrast, theUS decision to halt UN inspections in Iraq and invade the country, against the wishes of the inspectors,the Security Council, and most of the world, has helped to inspire, recruit, and train a terrorist network. Itis precisely when the state uses coercive measures such as war or detention that it must show it hasconvincing evidence and is using fair procedures. Solid evidence of wrongdoing and fair process are nottechnicalities to be cast aside whenever national security is threatened; without them, the use of force islikely to increase violence against Americans, not reduce it.

3.

The Bush administration's strongest claim in any debate on national security is that there has not beenanother terrorist attack on US soil since September 11. But it is difficult to see how many of theadministration's preventive initiatives have contributed to this result. The administration can take creditfor its original offensive against al-Qaeda in Afghanistan, although as Benjamin and Simon show, the warin Iraq has likely erased many of the gains of the Afghanistan campaign. Meanwhile, despite the claimsof the Bush administration Web site I cited earlier, it has little to show for its preventive campaign athome.

Of the 80,000 Arabs and Muslim foreign nationals who were required to register after September 11, the8,000 called in for FBI interviews, and more than 5,000 locked up in preventive detention, not one standsconvicted of a terrorist crime today. In what has surely been the most aggressive national campaign ofethnic profiling since World War II, the government's record is 0 for 93,000.

The administration boasts that it has obtained more than four hundred criminal indictments and over twohundred convictions in "terrorism-related" cases. But it fails to say that all but a very few of theindictments and convictions are for minor, nonviolent crimes such as immigration fraud or making falsestatements, not terrorism. In June 2005, The Washington Post examined all these cases in detail, andfound that only thirty-nine involved any convictions on charges related to terrorism.[6] As discussedbelow, while some of those thirty-nine were serious offenders—among them, Richard Reid and ZacariasMoussaoui—most were convicted not of terrorist activity but of broad-based charges of association with,or support of, a terrorist group, without any connection to actual terrorist actions.

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A Syracuse research institute found that the median sentence handed down in cases labeled "terrorist" bythe Justice Department in the first two years after September 11 was only fourteen days, not the kind ofsentence that will incapacitate a terrorist.[7] New York University's Center on Law and Security reacheda similar conclusion, finding, after reviewing the prosecutions in "terror-related" cases, that "the legalwar on terror has yielded few visible results. There have been...almost no convictions on chargesreflecting dangerous crimes."[8]

As for the 515 deportations, most were carried out under a policy that barred deportation unless a personwas first cleared by the FBI of any connection to terrorism. In identifying actual terrorists, thesedeportations are misses, not hits.

Virtually all of the cases in which the government has actually charged individuals with a crime relatingto terrorism allege not acts of terrorism per se, but only "material support" to a group the government haslabeled terrorist, a term expansively defined to include financial assistance, training, services, and evenexpert advice. Under the statute prohibiting material support, the Bush administration maintains that itneed not show that the person it arrests had anything to do with furthering a terrorist act. In one case inwhich I am representing a human rights group, for example, the government has argued that the lawprohibits the group from offering "training" in human rights advocacy to a Turkish organization, eventhough the government does not dispute that the intent of the training is precisely to discourage terrorismand encourage peaceful resolution of disputes.

ome of the convictions for "material support" that the administration has obtained seem to have todo more with inflating the numbers shown on its Web site than with any actual threat to national

security. A case in point is the prosecution of Lynne Stewart, a sixty-five-year-old criminal defenselawyer in New York City. In June 2000, while representing Sheik Omar Abdel Rahman, who is servingmultiple life sentences for conspiring to bomb the bridges and tunnels around Manhattan, Stewart issueda statement from the sheik to the press, and thereby violated an administrative restriction that barred himfrom contact with the outside world. Before September 11, the government responded, appropriately, byrevoking Stewart's visiting privileges and insisting that she sign a more restrictive agreement beforevisiting the sheik again.

But after September 11, the government charged Stewart with the crime of providing "material supportfor terrorism." She was convicted in February 2005 after a trial in which the government presentedhighly prejudicial and largely irrelevant evidence—including a tape from Osama bin Laden, played forthe New York jury around the anniversary of the September 11 attacks, even though neither Stewart norher codefendants were alleged to have had any ties to al-Qaeda. Stewart, under treatment for cancer,now faces the possibility that she will spend the rest of her life in jail. Her conviction provides anotherstatistic in the Justice Department's effort to show results in the "war on terrorism," but it is difficult tosee how it makes Americans safer.

Several of the government's most prominent "terrorist" cases have disintegrated under close scrutiny.John Ashcroft repeatedly claimed that the prosecution of Sami al-Arian, a computer science professor atthe University of South Florida, showed why the Patriot Act was essential. Yet after the prosecutionpresented eighty witnesses and hundreds of hours of taped surveillance over six months of trial, and afteral-Arian's lawyers rested their case without calling a single witness, a jury in Tampa found al-Arian notguilty of the most serious charges against him, including conspiracy to murder and to aid a terroristorganization. The jury was deadlocked 10–2 in favor of acquittal on all the rest, including a charge of"material support" and an immigration violation. Time magazine quoted a former FBI official who statedthat in late 2002 the FBI was pressured to make a case against al-Arian despite weak evidence: "'Wewere in shock, but those were our marching orders,' [said] the supervisor, who felt that the JusticeDepartment was rushing to indict before it had really appraised the evidence."[9]

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The administration earlier claimed to have uncovered an espionage ring at Guantánamo Bay, consistingof a Muslim chaplain and three translators. It charged Captain James Yee, the chaplain, with takingclassified information off base—but then dismissed all charges when it could not establish that any of theinformation was even classified.[10] It brought thirty charges against Ahmed al-Halabi, a twenty-four-year-old translator, some carrying the death penalty, but after ten months dropped all the seriouscharges and accepted a guilty plea to four minor crimes, including taking pictures at Guantánamo withoutapproval. The plea allowed al-Halabi to go free on the basis of the time served. A third man, AhmedFathy Mehalba, also pleaded guilty to minor crimes such as lying to investigators, and was set free a fewmonths later. The government dropped all charges against a fourth man, Jackie Farr.

The government prosecuted Sami al-Hussayen, a Saudi Arabian student at the University of Idaho, forgiving material support to a terrorist group. But when the evidence showed that he had engaged in onlyspeech—he ran a Web site with links to other Web sites, some of which advocated jihad—a juryacquitted him of all terrorism charges. And the administration's first jury conviction for material supportto terrorism in a post–September 11 case, in Detroit, was thrown out in September 2004 when thegovernment admitted that the prosecutor had failed to disclose that its principal witness had lied on thestand.

n perhaps its most prominent failure, the administration, when faced with the possibility that it mightbe held accountable for its actions, abandoned its efforts to hold two US citizens, Jose Padilla and

Yaser Hamdi, in military custody as "enemy combatants." After the Supreme Court held that the militaryhad to provide Hamdi a hearing to show why he was detained, the administration simply let him go, onthe condition that he return to Saudi Arabia and renounce his citizenship. And when Jose Padilla'slawyers sought Supreme Court review of his detention, the administration suddenly transferred him tocivilian criminal custody, where he faces charges not of committing or planning violence, but of playing amarginal part in a nebulous conspiracy to support unnamed terrorist groups.

Despite its aggressively preventive tactics, the administration has yet to identify a single al-Qaeda cell inthe US. Its Web site claims to have disrupted terror cells in "Buffalo, Detroit, Seattle, Portland (Oregon),and Northern Virginia," but does not claim that any of these groups were al-Qaeda cells. Those casesinclude most of the thirty-nine convictions on terror-related charges identified by The Washington Post,but they provide no evidence of any internal conspiracy to undertake terrorist attacks on the UnitedStates. Several men arrested in northern Virginia were convicted of playing paintball and attendingtraining camps to fight in Kashmir in the conflict between Pakistan and India, not to attack the US. Sixmen in Portland pleaded guilty to trying to go to Afghanistan to fight alongside the Taliban—they couldhave been charged with treason, perhaps, but not terrorism.

As for the Buffalo "cell," it consisted of six young men, actually from Lackawanna, a small town nearBuffalo, who pleaded guilty to attending an al-Qaeda training camp in Afghanistan long beforeSeptember 11. But they returned home and, according to the evidence that emerged, engaged in noillegal, much less terrorist, conduct in the US. The claim about Seattle presumably refers to JamesUjaama, a black activist held as a material witness and then charged with conspiracy to run a terroristtraining camp. He pleaded guilty to making a donation to the Taliban in contravention of an economicembargo imposed before September 11, and was freed after two years in prison. And the only "cell"identified in Detroit is the one I have mentioned, in which all charges against three Arab defendants weredismissed.

Meanwhile, the only criminal convicted for a terrorist act since September 11 is the shoe bomber RichardReid, captured not through any preventive initiative of the government but because an alert flightattendant noticed a strange-looking man trying to set fire to his shoe. Three people have been convictedof conspiracy to engage in terrorist conduct. Zacarias Moussaoui pleaded guilty in April 2005 to sixcounts of conspiracy to attack the United States—but of course he was captured not through any

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post–September 11 "preventive paradigm," but one month before those attacks occurred. Iyman Faris, anOhio truck driver, allegedly an associate of Khalid Sheikh Mohammed, pleaded guilty to conspiring tobring down the Brooklyn Bridge with a single acetylene torch, a plot that raises more questions aboutFaris's sanity than about US national security. And Ahmed Abu Ali was convicted in November 2005 ofconspiring to kill President Bush while Abu Ali was studying abroad in Saudi Arabia. The only personwith whom he allegedly discussed the plot was killed by the Saudis, and Abu Ali's conviction restedsolely on a confession that he claims was extracted from him by Saudi security services through torture, apractice for which they are well known.

o despite Bush's claims, the "war on terror" at home has resulted in the conviction of hardly anyactual terrorists. In Iraq the "war on terror" has in all likelihood resulted in the recruitment and

training of more terrorists than have been captured or killed. Benjamin and Simon make it clear thatconcerns about terrorist attacks throughout the world are often justified; and the convictions in the USsuggest that there are at least pockets of ideological resentment here that might pose a threat of violencein the future. But those facts underscore both the necessity for the kind of defensive measures Benjaminand Simon and the 9/11 Commission have shown are lacking, and the importance of avoiding initiativesthat might move people from the outer circle of fundamentalism to the inner circle of terrorists thatBenjamin and Simon describe.

It is possible, of course, that some of the administration's measures have produced valuable intelligence,although if that were the case one would expect to see more successful prosecutions for terrorism. It'salso possible that these initiatives have deterred some terrorists here from planning attacks on targets inthe US and others from coming to the US to do so—but the government has so far produced no evidencethat this has been the case.

What can be known is that the administration's tactics—a curious amalgam of outmoded thinking anddangerous new ideas—have created unprecedented levels of distrust toward US law enforcement withinthe Arab and Muslim communities here as well as intense anti-Americanism abroad. The administrationis accurately perceived as unfairly targeting innocent Arabs and Muslims, using coercion against thempreemptively and without a solid case, and disregarding fundamental principles of the rule of law andhuman rights. In the long run the resentment provoked by these measures is the greatest threat to ournational security, and the most likely source of the next attack.

—February 8, 2006

Notes

[1] See, for example, Richard Clarke's Against All Enemies: Inside America's War on Terror (2004) andJames Fallows's "Bush's Lost Year," The Atlantic, October 2004.

[2] Memorandum from Donald Rumsfeld to Dick Myers et al., "Re: Global War on Terrorism," October16, 2003, available at www.globalsecurity.org /military/library/policy/dod/rumsfeld-d20031016sdmemo.htm.

[3] Hearing before the Senate Intelligence Committee, 109th Congress, 1st Session, February 16, 2005.

[4] "Final Report on 9/11 Commission Recommendations," December 5, 2005, available atwww.9-11pdp.org/press/2005-12-05_report.pdf.

[5] See "On NSA Spying: A Letter to Members of Congress," The New York Review, February 9, 2006,and Lowell Bergman, Eric Lichtblau, Scott Shane, and Don Van Natta Jr., "Spy Agency Data after Sept.11 Led FBI to Dead Ends," The New York Times, January 17, 2006.

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[6] Dan Eggen and Julie Tate, "US Campaign Produces Few Convictions on Terrorism Charges," TheWashington Post, June 12, 2005.

[7] See "Criminal Terrorism Enforcement Since the 9/11/01 Attacks," a report issued by the TransactionalRecords Access Clearinghouse, December 8, 2003, available at trac.syr.edu/tracreports /terrorism/report031208.html.

[8] See their report, "Terrorist Trials: A Report Card," February 2005, available atwww.law.nyu.edu/centers/lawsecurity /publications/terroristtrialreportcard.pdf.

[9] Tim Padgett and Wendy Malloy, "When Terror Charges Just Won't Stick," Time, December 19, 2005.

[10] See Joseph Lelyveld's review of James Yee's book, For God and Country (Public Affairs, 2005), inThe New York Review, December 15, 2005.

Letters

March 23, 2006: Eliot Weinberger, Not a Terrorist

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